Coshow v. Konami Gaming Inc.

Filing 11

ORDER. IT IS THEREFORE ORDERED that 8 defendant Konami Gaming, Inc.'s motion to dismiss is GRANTED. Plaintiff Lacey Coshow's complaint 1 is DISMISSED without prejudice. The clerk of court is instructed to close this case. Signed by Judge Andrew P. Gordon on 3/1/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 LACEY COSHOW, 5 6 7 8 Case No. 2:16-cv-02383-APG-VCF Plaintiff, v. KONAMI GAMING, ORDER GRANTING MOTION TO DISMISS (ECF NO. 8) Defendant. 9 10 11 Defendant Konami Gaming, Inc. filed a motion to dismiss the complaint for lack of proper 12 service because service was both untimely and not made on a person with authority to accept 13 service on Konami’s behalf. Plaintiff Lacey Coshow did not respond. I therefore grant the 14 motion to dismiss as unopposed. LR 7-2(d). 15 I also grant the motion on the merits. “A federal court does not have jurisdiction over a 16 defendant unless the defendant has been served properly under Fed. R. Civ. P. 4.” Direct Mail 17 Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Rule 18 12(b)(5) of the Federal Rules of Civil Procedure authorizes a defendant to move for dismissal due 19 to insufficient service of process. The plaintiff then has the burden of demonstrating that service 20 of process was valid. R. Griggs Grp. Ltd. v. Filanto Spa, 920 F. Supp. 1100, 1102 (D. Nev. 1996). 21 Actual notice of a lawsuit will not subject a defendant to personal jurisdiction “if service was not 22 made in substantial compliance with Rule 4.” Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 23 2013) (quotation omitted). 24 Coshow filed the complaint on October 12, 2016. ECF No. 1. She thus had until January 25 10, 2017 to serve Konami. See Fed. R. Civ. P. 4(m). On January 11, 2017, the clerk of court 26 issued a notice advising Coshow to file proof of service or the case would be dismissed without 27 prejudice. ECF No. 6. On January 20, Coshow filed proof of service showing Konami was 28 1 served on January 18 by serving Christine Sweitzer, a human resources analyst for Konami. ECF 2 Nos. 7, 8-3. The service therefore was untimely. Moreover, Konami has presented evidence that 3 Sweitzer was not authorized to accept service on Konami’s behalf. See ECF Nos. 8-3, 8-4. 4 Because Coshow did not respond to the motion to dismiss, she has not shown service of process 5 was valid. 6 I nevertheless must extend the 90-day time limit of Rule 4(m) if Coshow shows good 7 cause for failure to serve within 90 days. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 8 2009). Coshow bears the burden of demonstrating good cause for the delay. Fed. R. Civ. P. 4(m); 9 see also Boudette v. Barnette, 923 F.2d 754, 755 (9th Cir. 1991). Generally, good cause is 10 equated with diligence. Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987). 11 A showing of good cause requires more than inadvertence or mistake of counsel. Id. “[A]t a 12 minimum, good cause means excusable neglect.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 13 2001) (quotation omitted). 14 Because Coshow did not respond to the motion to dismiss, she has not shown good cause 15 for extending the service deadline. I therefore will dismiss this case without prejudice for failure 16 to timely and properly serve Konami. 17 IT IS THEREFORE ORDERED that defendant Konami Gaming, Inc.’s motion to dismiss 18 (ECF No. 8) is GRANTED. Plaintiff Lacey Coshow’s complaint (ECF No. 1) is DISMISSED 19 without prejudice. The clerk of court is instructed to close this case. 20 DATED this 1st day of March, 2017. 21 22 23 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 24 25 26 27 28 Page 2 of 2

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